June 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTHONY A. AFANADOR, a/k/a ANIBAL AFANADOR and ALEX DELGADO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-12-1019.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph Glyn, Deputy Attorney General, of counsel and on the brief).
Before Judges Sapp-Peterson and Nugent.
A jury convicted defendant, Anthony A. Afanador, of first-degree armed robbery and related weapons offenses arising out of the robbery of a gas station attendant. At sentencing, the court sentenced defendant as a persistent offender and imposed an extended term of imprisonment of thirty years with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant argues:
THE ADMISSION OF CERTAIN HEARSAY EVIDENCE OF DETECTIVE CAPELLI WAS IMPROPER AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. (NOT RAISED BELOW).
TESTIMONY BY SHAW[N] LAND THAT HIS VEHICLE WAS DAMAGED WHEN A GIRL RIDING IN DEFENDANT'S VEHICLE HIT IT WITH A BASEBALL BAT WAS IMPROPER N.J.R.E. 404(b) EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
TESTIMONY REGARDING THE IN-COURT AND OUT-OF-COURT IDENTIFICATION OF MR. AFANADOR SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
DETECTIVE CAPELLI'S TESTIMONY THAT THROUGH A SEARCH IN THE POLICE IN-HOUSE COMPUTER SYSTEM HE LOCATED DEFENDANT WAS GROSSLY PREJUDICIAL AND SHOULD HAVE BEEN STRICKEN FROM THE RECORD.
THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF THIRTY (30) YEARS WITH [AN] 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (NOT RAISED BELOW).
Based upon our review of the record and applicable law, we are not persuaded by any of defendant's challenges. We therefore affirm the convictions and sentences imposed.
The State developed the following proofs at trial. On August 31, 2009, around 2:00 a.m., Abdoul Toure, an employee of the Riggins Gas Station in Vineland, while lying down on the couch in the business office located in the rear of the convenience store part of the station, was approached by a male armed with a handgun. The male had a bandana over his nose, but the bandana did not conceal a red mark on the right side of his face. The perpetrator was wearing a black hooded sweatshirt or hoodie. He told Toure, "Give me all the money." Toure recognized the man, whom he later identified as defendant, by the red mark, his voice, height, and build, including "flat-type shoulders, " as "Cheesy, " who regularly frequented the gas station and had been there one and one-half hours earlier to purchase cigarettes.
Toure was surprised at defendant's request. He attempted to look defendant directly in his eyes and responded, "Really?" At that point, defendant took $720 from Toure's pocket and ran away. Vineland police responded shortly thereafter and took a report from Toure.
There was video equipment at the station which monitored the outside and interior of the store. The cameras did not capture the actual robbery, but did capture a hooded individual wearing a black mask enter through the office door, remove a handgun and point it in the direction of Toure, who was lying on the couch. However, the identity of the perpetrator could not be discerned from the video. Toure, approximately one week after the robbery, identified defendant from a photo array.
Also, one week following the robbery, Shawn Land, who had contacted police to report that a female had damaged his car, informed the police about the gas station robbery. Land told police that two weeks before the gas station robbery, defendant, whom he had known for about three weeks at that point, asked him to be the getaway driver for a robbery at the gas station. He told defendant he didn't want to get involved. Defendant then showed him a silver and red revolver which appeared real to him. Land knew defendant by both his real name, Anthony Afanador, and by his nickname, "Cheesy."
Defendant did not testify, but his uncle, Elvin Torres, testified on his behalf. According to Torres, at the time the robbery was being committed, defendant, who lived with him, was at home. He testified defendant borrowed his vehicle earlier that evening and drove two family members home. When defendant returned around 1:15 a.m., he took the keys from him because defendant had some alcohol and smoke on his breath. He and defendant then both fell asleep in the living room until 5:30 a.m.
Torres did not advise police defendant had been with him at the time the robbery was being committed until eight months later. He explained he had been upset with defendant that night because defendant had taken his vehicle, a Ford Escape. He recorded the time defendant took the car to protect himself in case he was questioned by the police about the car. Although police requested that Torres turn over the note several times, he did not do so, explaining "[i]t's only a piece of paper, wrote down, boom. I shuffled it through my bills[.]"
Defendant first contends that he was deprived of his right of confrontation when Detective Anthony Capelli testified that based upon a conversation with another officer, Fran Webb, he was looking for a particular individual, Anthony Afanador, and assembled a photographic array, which included defendant's picture. Toure reviewed this photographic array and identified defendant as the person who committed the robbery. Defendant additionally contends the court erred in permitting Detective Capelli to testify concerning video footage of the robbery. We find no merit to either contention.
In State v. Branch, 182 N.J. 338, 352-53 (2005), the Court noted that without the jury's impermissible consideration of the hearsay evidence, which implicated the defendant in that case, the State's evidence against the defendant "was far from overwhelming." The Court held that under such circumstances, testimony from the police officer that he assembled a photographic array based upon information received would lead a jury to logically infer that "'a non-testifying witness has given the police evidence of the accused's guilt[.]'" Id. at 349 (quoting State v. Bankston, 63 N.J. 263, 271 (1973)). These are not the circumstances surrounding Detective Capelli's testimony.
First, defendant did not object to Detective Capelli's testimony that he spoke to Officer Webb and thereafter was looking for a particular individual. We therefore review the claimed error under the plain error standard. R. 2:10-2. Plain error is not simply any error but an error that is capable of producing an unjust result. Ibid. We are satisfied that no error occurred that was capable of producing an unjust result. Ibid.
Second, Toure and Land knew defendant. Thus, their identification of defendant from the photo array was not for their benefit. Further, both Land and Toure implicated defendant in the robbery and testified at trial, thereby affording defendant the opportunity to cross-examine them about their identification or the procedures utilized in the photographic array. Thus, the jury would not, under these circumstances, logically infer that information outside the record formed the basis for assembling the photographic array. Branch, supra, 182 N.J. at 349.
We therefore conclude there was no error, let alone plain error, resulting from Detective Capelli's testimony about his conversation with Officer Webb. Moreover, even assuming there was error, the error was harmless because the totality of the incriminating evidence presented undermined the likelihood of prejudice to defendant's right to a fair trial occasioned by Capelli's testimony about his discussions with Officer Webb. State v. Kemp, 195 N.J. 136, 155-56 (2008).
Likewise, Capelli's testimony about the video footage of the robbery provoked no constitutional violation or caused any undue prejudice to defendant. Officer Platamia,  without objection, was the first witness to testify about the video footage. Thereafter, Toure, also without objection, during his direct examination, referenced the video footage while explaining that he had turned surveillance cameras on to monitor the outside while he was resting. When the prosecutor asked whether the cameras were taping the inside of the store as well, Toure responded affirmatively.
Detective Capelli's testimony about the video footage followed that of Officer Platamia and Toure. He testified that when he viewed the footage, it depicted "a subject wearing a black hooded sweatshirt and a black mask, walk in the office door of the gas station itself [around 2:12 in the morning], and remove a handgun from his waistband and point it in the direction of the victim." The detective also testified that the footage did not capture the actual robbery. Nor could he determine the identity of the perpetrator. He requested another copy of the footage from the store manager. His copy was not clear, but he was never given another copy. There was no objection to any of Detective Capelli's testimony in this regard. Detective Capelli's testimony about the video footage provided no incriminating information beyond that which had already been provided in the testimony of the two preceding witnesses. Indeed, defense counsel, during cross-examination, highlighted that Detective Capelli could not tell from looking at the footage that defendant was in the office at the time of the robbery.
Defendant next contends the court should have excluded the testimony from Land that his vehicle was struck by a girl who was riding in defendant's car and the court further erred when it failed to give a limiting instruction as to how the jury should consider this evidence in its final charge to the jury. Once again, this was not an issue to which an objection was raised at trial. Therefore, the claimed error is reviewed under the plain error standard. R. 2:10-2. We discern no error from this testimony.
The State only elicited testimony from Land that he contacted police about information pertaining to a robbery "[b]ecause a girl had hit my car with a baseball bat, and I called the police to the house." When asked what led him "to tell [the officer] about the information [he] had regarding the robbery[, ]" he responded, "I was mad at the time and he was at the house, so I told the police officer . . . [t]hat I know something about the robbery at the gas station." Land testified he told the officer defendant had asked him to be a "getaway driver." The prosecutor did not elicit testimony from Land during his direct examination about a girl being in the car with defendant. That testimony was elicited by defense counsel during cross-examination:
Q. Okay. And, on September 7th, 2007, is that when a girl hit your car with a baseball bat?
A. Yeah, that's correct.
Q. I'm sorry?
A. That's correct.
Q. And, that was the same -- that girl was in a vehicle with Mr. Afanador?
Q. Okay. Supposedly his girlfriend?
A. I guess. I don't know.
Q. Okay. But, she was with him, nonetheless?
Q. And, she hit your car with a baseball bat?
Q. Okay. And, this was after August 31st, 2009?
Q. Yes? A. Yes.
Later, during summation, defense counsel used this testimony to suggest to the jury that Land lied about his conversation with defendant in retaliation for the damage to his car, which he believed defendant's girlfriend committed. Having introduced, through cross-examination, the existence of a relationship between defendant and the girl who allegedly damaged Land's vehicle, defendant may not now claim error on the part of the court in permitting this testimony. Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996) (stating that "where error was advanced to secure a tactical advantage at trial, the party responsible will not be permitted to complain on appeal").
In his third point, defendant claims Toure's out-of-court identification was impermissibly suggestive because the identification procedures employed were contrary to the Attorney General Guidelines and State v. Henderson,  208 N.J. 208 (2011). This claim lacks merit as defendant failed to request a Wadehearing to challenge the admissibility of Toure's identification and therefore is "in no just position to make objection on appeal[.]" State v. Edge, 57 N.J. 580, 587 (1971). Had a Wade hearing been sought, however, it is likely the out-of-court identification would not have been excluded. Toure knew defendant as one of his regular customers. Thus, his out-of-court identification was not of someone with whom he had never had a prior encounter, but of someone he knew. Additionally, at trial, defendant did not, through cross-examination of Detective Capelli or Toure, challenge the identification procedures employed.
Defendant also assigns reversible error to Detective Capelli's testimony that he located a photograph of defendant through the police department's in-house computer system. Defense counsel immediately objected to this testimony and the court provided the jury with a curative instruction explaining that
The photograph reference[s] are not evidence that the defendant has ever been arrested or convicted of any crime. Such photographs come into the hands of law enforcement from a variety of sources, including, [but] not limited to driver's license[s], applications, passports, ABC identification cards, various forms of government employment, private employment which requires state regulation, included, but not limited to casino license applications, security guard applications, et cetera, or from a variety of other sources totally unconnected with criminal activity.
In its final instructions to the jury, the court reiterated this instruction. We presume the jurors followed these instructions. See, e.g., State v. Burris, 145 N.J. 509, 679 (1996) (stating that, with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction" (citing State v. Manley, 54 N.J. 259, 270 (1969))). Additionally, the reference was "solitary and fleeting" and, thus, is considered cured by the jury instruction. State v. Miller, 159 N.J.Super. 552, 561-562 (App. Div. 1978), certif. denied, 78 N.J. 329 (1978) (holding that mention of "mug-shots" was harmless error because it was a fleeting mention and the court provided cautionary instructions). See also State v. Porambo, 226 N.J.Super. 416, 425-26 (App. Div. 1988) (citing State v. O'Leary, 25 N.J. 104, 114-116 (1957) (holding that a police officer citing defendant's photograph as having come from "our gallery" was not reversible error)).
In his final point, defendant contends the discretionary extended term imposed by the court was excessive. We disagree. N.J.S.A. 2C:44-3(a) permits the court, at sentencing, upon application by the prosecuting attorney, to sentence a person convicted of a first-degree crime to an extended term. The person, at the time of the commission of the crime, must be twenty-one years of age or over, who has been previously convicted on at least two separate occasions of two crimes. The prior crimes must have been committed at different times, when the defendant was at least eighteen years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within ten years of the date of the crime for which the defendant is being sentenced.
Once a defendant qualifies for the discretionary extended term, the range of the sentences the court may impose "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). This means that, here, the court could have sentenced defendant, who was convicted of a first-degree crime, to anywhere from ten years (the minimum for first-degree crimes) to life (maximum extended term). The choice rests within the sentencing court's "sound judgment" after weighing aggravating factors (N.J.S.A. 2C:44-1(a)) against mitigating factors (N.J.S.A. 2C:44-1(b)). Id. at 168-69 ("[W]hether the court chooses to use the full range of sentences opened up to [it] is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public."). The choice, however, is subject "to reasonableness and the existence of credible evidence in the record to support the court's finding[s] . . . ." Id. at 169. On appeal, we will modify a sentence only if we find the sentencing judge abused his discretion. Id. at 169-70. We find no such abuse on this record.
The court determined that the statutory predicates for imposition of an extended term had been met. Next, in determining that an extended term should be imposed, the court highlighted defendant's extensive record, the fact that "no levels of state level incarceration, county jail, or probation, have been able to deter defendant from violating the law[, ]" and that defendant had committed the underlying offense while out on bail in connection with other indictable offenses.
The court then appropriately weighed the statutory aggravating factors and found two aggravating factors the risk that defendant would commit another offense and the need to deter defendant from committing further offenses as factors favoring imposition of an extended term NJSA 2C:44-1a (3) and (9) The court found no mitigating factors
Finally the court noted that defendant's conviction was subject to a mandatory period of parole ineligibility under the No Early Release Act (NERA) NJSA 2C:43-72(b) We are satisfied the sentence imposed was well-supported by the record and discern no basis to disturb this sentence on appeal